Dec
28 2011 The law concerning animal rights protest is too
broad, protecting commercial interests and making terrorists out of people
who want to voice concerns.

Distribute an animal cruelty video commercially and you're protected from
prosecution by the First Amendment. Distribute an animal cruelty video
idealistically, to protest practices by laboratories, agribusiness, or the
fur industry, and you risk prosecution as a terrorist under the Animal
Enterprise Terrorism Act (AETA). In other words, current law involving
depictions of animal cruelty protects commercial speech and threatens
political advocacy.

Blame Congress, not the Supreme Court, for this absurdity. Recently, in
U.S. v Stevens , the Court struck down a federal law criminalizing
the commercial sale or possession of videos depicting animal cruelty.
Writing for an 8 - 1 majority, Chief Justice Roberts rightly rejected the
government's effort to carve out an animal cruelty exception to the First
Amendment (akin to the exception for child pornography.) The Court has not
reviewed the AETA, but it could and should eventually avail itself of an
opportunity to strike it down as well.

The Center for Constitutional Rights (CCR), representing several animal
rights activists, has filed a federal court challenge to the Animal
Enterprise Terrorism Act. "The AETA classifies certain protected speech and
activity as a 'terrorist' crime," CCR's complaint in
Blum v Holder explains. "It punishes individuals who alone, or with
others, criticize or demonstrate against what the statute vaguely identifies
as an 'animal enterprise,' if that otherwise permissible speech damages the
property or profitability of the animal enterprise or even a person or
entity connected with it ... (The AETA) punishes otherwise lawful and
innocuous speech or advocacy that causes a business that uses or sells
animal products to lose profit, even where that lost profit comes from a
decrease in sales in reaction to public advocacy."

This characterization of the AETA is not hyperbole: While the statute was
ostensibly intended to protect research and commercial entities and their
employees from violent attacks, criminal harassment, and vandalism by animal
rights extremists, its broad, vague prohibition of "interfering" with an
animal enterprise and affecting the profits of any related person or entity
means that exposing the abuses of factory farms or successfully boycotting
fur sales could be labeled acts of terrorism. Conceivably, some targeted
activists could eventually prevail with First Amendment defenses at trial or
on post-conviction appeal, but some would not. But all would suffer the
panic of being targeted by a terrorism prosecution, and some would likely
plead guilty to lesser offenses, surrendering their free speech rights to
avoid imprisonment. CCR alleges that its clients (one of whom was previously
convicted under an earlier version of the AETA), have simply ceased
protesting, resorting to self-censorship to escape prosecution.

Why did Congress include non-violent advocacy in an anti-terrorism
statute? Ten years after 9/11, that is essentially a rhetorical question.
Fear mongering and the authoritarianism it breeds don't discriminate between
actual and highly implausible or imaginary threats to security. Whatever
dissenting or disruptive speech that authorities intensely dislike is
increasingly liable to be condemned as terrorism. But the AETA also reflects
a legislative trend simply not attributable to 9/11. To deter or punish
particular acts -- like violent attacks on animal researchers -- Congress
legislates in general terms, criminalizing speech or conduct barely related,
if at all, to the evil it purportedly to seeks to control. Consider the
Controlled Substances Act and its use by drug warriors against
doctors who prescribe pain medication (and beware of any law enforcement
crusade marketed as a "war.")

This is the "trust us" theory of legislating. It demands that we trust
prosecutors to act in good faith, with a sense of proportion and respect for
our rights to speech, privacy, and due process. It expects us to ignore
overwhelming evidence that prosecutors are not inherently trustworthy,
that they routinely abuse their broad discretion and persecute ordinary,
generally harmless citizens for unwittingly violating over-broad laws.

The Supreme Court is sometimes complicit in these abuses; (the Court
upheld the use of anti-terror, material support laws against peace
activists.) But in U.S. v Stevens, Justice Roberts acknowledged and
rejected the "trust us" approach to legislation. The animal cruelty video
ban at issue in Stevens was "a criminal prohibition of alarming
breadth," Roberts observed, and the government should not be trusted with
it. The Court "would not uphold an unconstitutional statute merely because
the Government promised to use it responsibly." The First Amendment
"protects against the Government; it does not leave us at the mercy of
noblesse oblige."

Might the Court display similar concern for constitutional checks on
government power in the interests of individual rights if it ever reviews
the Animal Enterprise Terrorism Act? Progressive critics of the Court's
pro-business biases might point out that in U.S. v Stevens, it struck
down a law that restrained commercial enterprises. The AETA, however,
protects commercial enterprises from political activity that threatens
profitability. My own view is not quite so jaundiced. I suspect that a
majority of justices will stand with First Amendment rights when the
government targets speech that doesn't unduly disgust or frighten them or
significantly threaten the power of the security state. This is the "I know
it when I see it" approach to judicial review of speech restrictions. (Maybe
I am quite so jaundiced, after all.)

What will the Supreme Court see in protests of animal cruelty? Who knows?
The Third Circuit Court of Appeals upheld the Animal Enterprise Protection
Act (AEPA), predecessor statute to the current Animal Enterprise Terrorism
Act, in
U.S v Fullmer. The third circuit rejected First Amendment based
facial challenges to the AEPA's over-breadth, as well as challenges to law's
application to the animal rights defendants then before the court.

Read the opinion in Fullmer, and
you may be convinced that most of the defendants in the case crossed the
line between protected speech and criminal harassment, actual threats, and
electronic vandalism, which made them imperfect vessels for facial
challenges to the AEPA's effect on free speech. Plaintiffs in the CCR
lawsuit, however, are allegedly refraining from engaging even in peaceful,
non-threatening protests, and they're challenging an enhanced animal
enterprise statute (the AETA) that effectively equates officially unwelcome
speech with terrorism. This is a high stakes case that invites a lofty
defense of liberty; but, after U.S. v Stevens, it also presents
federal judges with a simple question: shouldn't people who oppose animal
cruelty enjoy the same constitutional rights as people who enjoy it?